India’s government has established new rules for digital news organizations, social media intermediaries and OTT platforms under the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, released by the Electronics & Information Technology Ministry and the Information & Broadcasting Ministry on Feb. 25 2021.
Framed under the Information Technology Act or the IT Act, 2000, the guidelines for digital media and OTT will become active on the date of publication in the official Gazette of India. The rules consist of three main parts, where Part I defines the terms and Parts II and III delineates compliance requirements. The regulation of social media intermediaries like WhatsApp, Telegram, Facebook, Instagram etc., is detailed in Part II and will be overseen by the Ministry of Electronics and Information Technology (MeitY). Regulations for digital news media and OTT platforms like Netflix, Hotstar, Amazon Prime etc., are contained in Part III, which will be managed by the Ministry of Information & Broadcasting.
Under the IT Act, 2000, OTT platforms were not previously regulated. The new rules however, framed under this Act, seek to exercise the power to regulate them, which can constitutionally only be done via a parliamentary enactment.
Code of Ethics
A Code of Ethics for OTT platforms is outlined in the Appendix of the Rules, under which is present a three tier Grievance Redressal mechanism. Level I – Self-regulation by the applicable entity, Level II – Self-regulation by the self-regulating bodies of the applicable entities and Level III – Oversight mechanism by the Central Government. There does not appear to be any legislative backing or a parliamentary law behind the Oversight Mechanism, which also allows the Ministry emergency powers to block content.
Grievance Redressal and Self-Regulating Mechanism
Level I states that OTT platforms must draw up a grievance redressal mechanism which will be headed by a Grievance Officer who must be an Indian citizen. A 15-day time period has been allocated for the Grievance Officer to address the complaint and revert, beyond which it will be escalated to Level II. In case the complainant is not satisfied with the publisher’s decision, they also have the choice to appeal to the self-regulating body in Level II within 15 days of receiving such a decision.
Level II contains the independent self-regulating body, comprising of publishers or their associations and is expected to be headed by a retired judge of either the Supreme Court, High Court or any eminent personality from the fields of media, broadcasting, entertainment or other relevant fields and have a maximum of six other members from these fields. This body must register itself with the Ministry of Information & Broadcasting and has the power to provide warnings, censure, admonish or reprimand the publisher, require an apology from the publisher, reclassify ratings, make changes to the content descriptors, synopsis, access control measures of the content or even censor the content. It will then pass on its decision to the publisher in the form of a guidance or advisory and inform the complainant of its decision within 15 days.
In Level III, if the complainant is not satisfied by the self-regulating body’s decision, they can appeal to the Oversight Mechanism of the Central Government within 15 days of receiving the decision. Non-compliance by the publisher to the self-regulating body’s directions can also result in the complaint being forwarded to Level III. This level comprises an Inter-Departmental Committee consisting of representatives from the Ministry of Information & Broadcasting, Ministry of Women & Child Development, Ministry of Law & Justice, Ministry of Home Affairs, Ministry of Electronics & Information Technology, Ministry of External Affairs, Ministry of Defense and such other Ministries and Organizations, including domain experts. The Chairman of the Committee will be a Joint Secretary from the Ministry of Information & Broadcasting. The primary objective of this Committee will be to address complaints regarding decisions taken at Levels I and II, and it is empowered to delete or modify content for preventing incitement to the commission of a cognizable offence relating to public order.
Rules for providers of OTT content
OTT content publishers are forbidden from showing any content that is prohibited under Indian law. There is also mention of exercising caution when showing content that can be detrimental to the sovereignty and integrity of India or has the potential to cause friction with its allies. Additionally, OTT providers are asked to remain sensitive when portraying the culture, beliefs, practices or views of any racial or religious group in the country. Also required is self-classification of the OTT content into five new age-based categories – U (Universal), U/A 7+, U/A 13+, U/A 16+, and A (Adult). Access control mechanisms like parental locks for content classified U/A 13+ or higher and reliable age verification mechanisms for content classified as “A” must be implemented by the OTT providers.
A major concern for OTT providers is the Oversight Committee’s power to block access to content that it deems unfit for the public which is seen as the government’s overreach to suppress creativity. However, the secretary of the Ministry of Information & Broadcasting, Amit Khare, moved to quash these concerns – “There will be no authoritarian process. The regulation system is accountable to the courts. Any misuse of power can be checked.”
Khare said that these rules represent a paradigm shift in policy. “As of now, any movie that released to theaters needs to be approved by the Classification Board, but for these OTT platforms, no such requirement is there. The government has left the decision up to them. They can decide what labels to use. The idea is that the viewer should be aware of what they will be watching.”
He stressed that government would in no way alter the content available. “Films only have three categories, while we have provided five for OTT platforms. The government is willing to consider extending a similar classification for movies released in theatres as well.” Khare also highlighted how OTT platforms have democratized entertainment. “These rules were debated for over a year-and-a-half. We have also taken a conscious decision to not set up a web portal where grievances can be filed as we wanted to make sure people didn’t think the government was needlessly interfering,” he said. “The people can directly complain to the platform and if the complaint is not resolved by their standards, it can be escalated to the ministry.”
The recent release of Amazon Prime Video’s “Tandav” created enormous controversy in India. Many viewers accused the show of offending religious sentiments. “Tandav” is a political drama with several popular Indian actors including Saif Ali Khan who also starred in the contentious “Sacred Games” and Dimple Kapadia who was seen in Christopher Nolan’s “Tenet.” The actors ran into trouble when, in six different states, multiple police cases were filed (FIRs) against the program’s creators and cast.
The fictional series’ focuses on clashes between a political leader and a student activist. In the two scenes causing the most backlash, one actor portrays the Hindu Lord Shiva using objectionable language; in the other, an actor portrays the Prime Minister insulting a leader of a less privileged class, which is viewed as discriminatory.
The rising number of complaints against the show prompted India’s Ministry of Information and Broadcasting to summon Amazon Prime Video Executives for questioning and an explanation of the controversial content in the series. Director Ali Abbas Zafar released a statement apologizing for any unintentional disrespect caused by the show. Following a second round of talks with the Ministry, Zafar released a statement on Twitter confirming that the disputed scenes will be dropped from the series, effectively resulting in censorship.
Despite the public mea culpas, criticism mounted forcing creators and cast to ask India’s Supreme Court for interim protection from arrest, which the apex court denied. In its ruling, the court emphasized that “freedom of speech is not absolute” and “You cannot play the role of character that hurts the sentiments of a community.” Given the intensity of grievances against “Tandav” and other streaming platform content (“Mirzapur”), the Information and Broadcasting Ministry announced that they would soon provide official guidelines to regulate content available on these services.
There have been numerous attempts of censorship in India; film and/or series content is flagged for containing material deemed objectionable. Netflix faced a boycott when in its series “A Suitable Boy,” one of the episodes depicted a Muslim man kissing a Hindu woman allegedly within the premises of a temple. The scene hurt the sentiments of people of a particular religion and resulted in filing of police cases against the Vice President of Content and Director of Public Policies at Netflix India.
Ultimately, in a country as vast and varied as India, some content is bound to be offensive to certain parts of the population. Self-regulation, as practiced internationally is surely the way forward to protect the freedom of expression guaranteed by the India’s Constitution. Following this path will not only enhance the credibility of the media industry, but also inspire confidence in the responsibility of the content creators while protecting their independence and lessening the pressure on the judiciary.
In a move to modernize the age-rating system for movies in Ontario, Canada, the provincial government recently proposed the ‘Film Content Information Act 2020’ as part of the Budget Bill that does away with General, Parental Guidance, 14 Accompaniment, 18 Accompaniment and Restricted age ratings. The new act would replace the Film Classification Act, 2005.
In recent years, the Ontario Film Review Board (OFRB) – a film classification body run by the Ontario Film Authority, a nonprofit organization, appears to have fallen behind in assigning the mandatory age-ratings to movies released in the province. This created a problem since films could only be screened by distributors and theatres once they had been assigned an official rating issued by the province. The absence of a rating affected new releases.
There are cases where popular movies like “Roma” were not rated in time for its release. The acronym STC or Subject to Classification started appearing more frequently. Besides the delays, there is also the issue of inconsistent ratings. Films are sometimes assigned higher ratings and, upon further review, re-rated. The OFRB website’s rating database is also outdated.
To bring more efficiency and adapt to the rapidly shifting landscape toward digital platforms and streaming services, the provincial government dissolved the Ontario Film Authority on September 27, 2019 and took control of classifying movies in the province. The government assumed this role until it held consultations with the public and industry in the fall of 2019. The objective was to modernize film classification in Ontario while at the same time continuing to maintain consumer protection. In addition to reducing regulatory requirements, this move will also help the film industry save up to $1.5 million per year on film rating and licensing costs.
The outcome of this consultation with all stakeholders is the proposed new ‘Film Content Information Act, 2020’ that is formulated to replace what the government considers outdated requirements with information that assists the general public in making informed viewing decisions. The Act, if passed into law, would completely abolish the need for film exhibitors, retailers, and distributors to meet the film classification and licensing requirements. However, adult movies with explicit sexual content and video games will continue to be regulated as per the existing rules and regulations.
In contrast to traditional age-ratings, exhibitors are required to provide comprehensive descriptors about the film which could include violence, nudity, profanity, drug use, sexual scenes and more. A suggested age-rating could also be provided but this would only serve as a recommendation and not a rule. To receive feedback about the exhibitor provided ratings and to ensure audience complaints are attended to, contact details will be provided.
It remains to be seen if this proposed new act will provide more content information than traditional age-ratings and influence viewing choices of the audiences. However, in the rapidly changing environment of proliferating media content from both traditional and OTT players, self-regulation appears to be one of the most efficient methods to keep up with content.
While much of the European Union acknowledges and accepts LGBTQ+ rights and relationships, Lithuania has some of the strictest laws in the region. The Baltic Republic was originally part of USSR, which itself has a history of being unfriendly to LGBTQ+ people. In 2020, more than 16 years after joining the EU, Lithuanians continue to oppose granting the LGBTQ+ community the same rights as heterosexuals. According to surveys conducted by the European Commission, only 30% support same-sex marriages.
Same-sex activity, although legal since 1993 does not provide the same rights and legal recognition to the community that civil same-sex partnerships and marriages do. This bias prevalent in Lithuanian society and unsurprisingly offenses against the LGBTQ+ people often go uninvestigated or are dismissed outright.
Nongovernmental organizations like the Lithuanian Gay League (LGL) that fight for and represent the rights of LGBTQ+ people in the country have routinely raised the issue of the Law on the Protection of Minors against the Detrimental Effect of Public Information. The law was enacted to protect minors from information in the public domain that could negatively influence their mental well-being. In a contentious move, this law was amended in 2009 to include any information that could be construed as promoting LGBTQ+ relationships or way of life.
Numerous examples of censorship exist in the media of content involving the LGBTQ+ community. The award-winning band, Skamp, known for its fusion of pop, reggae and hip-hop music, saw the video of its song “Love Me Like There’s No Tomorrow” banned because it included kissing scenes involving same-sex couples.
Elena Reimerytė’s documentary “Spalvos“ (“Colours“) on gay parenting via surrogacy in the UK was removed from the Lithuanian national broadcaster LRT’s platforms after homophobic protestors assailed its portrayal of LGBTQ+ family life; a world that deviates from the one the Lithuanian Constitution enshrines. The regulatory body ruled the program was not harmful to minors and did not violate any existing regulations.
LGBTQ+ suppression is also evident in the fairytale book “Amber Heart” by the author Neringa Dangvydė. Publication and sales were halted after complaints by conservative MP’s with the University of Education and Office of the Inspector of Journalistic Ethics. The book conveys stories of both happy heterosexual families and homosexual families. The reason for the ban is-again-the distorted concept of family outlined in the Lithuanian Constitution.
After the author approached the courts, the publisher agreed to resume publication – only under the N-14 label which deems the material to be inappropriate for children under the age of 14. A move widely condemned by NGO’s around the world. Ultimately four Lithuanian-based organizations launched an international crowdfunding appeal to publish the book and distribute among local libraries.
Counter to conservative actions, openly gay filmmakers such as Romas Zabarauskas, want to change people’s perspective. Romas’s recent venture “The Lawyer” centers on the relationship between a gay Lithuanian lawyer and a bisexual Syrian sex-cam worker. It’s the first mainstream Lithuanian film with male same-sex relationships as its focal point. Perhaps in a sign of changing times, Romas also managed to bag a 197,500 euros production grant from the Lithuanian Film Centre-a first for him. The film is scheduled for theatrical release in state cinemas in September 2020 after being postponed due to the Covid-19 pandemic.
Organizations such as the LGL and individuals like Romas continue to push societal and constitutional reforms toward a diverse and accepting Lithuanian society. It is also incumbent on the State to consider revising existing laws that lead to discrimination on grounds of sexual orientation. Perceived family values from the times under the USSR are the main obstacle to the advancement of LGBTQ+ rights. Lithuania’s inclusion into the EU appears to be driving change as the European Parliament acts to protect the rights of the LGBTQ+ community by asking member states to approve anti-discriminatory laws. There remains a lot of work to be done in the Baltic state but the LGBTQ+ community in Lithuania is finally beginning to see some acceptance.